[Note from Matthew Gaylor: This FBI Agent explains in detail the not wellknown (Outside of Law enforcement) interrogation strategy of notMirandizing a suspect. The theory is that parts or all of the testimonymay NOT be thrown out by a court. Miranda rights as defined by the USSupreme Court seem to be ignored in this ploy by law enforcement to getsuspects to talk. If you ever end up under the bright lights of aninterrogation lamp- Just keep your month shut and ask for your lawyer. Ifthe FBI were truly interested in enforcing the laws of the United States,they might start by investigating to determine by what extent lawenforcement engages in a conspiracy to circumvent the law.

Excerpted FBI Law Enforcement Bulletin August, 1997

http://www.fbi.gov/leb/aug976.htm]

Intentional Violations of Miranda: A Strategy for Liability By Kimberly A.Crawford, J.D.

Intentional Miranda violations may jeopardize cases and exposeinvestigators and agencies to civil suits.

Special Agent Crawford is a legal instructor at the FBI Academy.

Over three decades ago, in Miranda v. Arizona,1 the United States SupremeCourt held that custodial interrogations create a psychologicallycompelling atmosphere that countermands the Fifth Amendment protectionagainst compelled self- incrimination.2 Accordingly, the Court developedthe now-familiar Miranda warnings as a means of reducing the compulsionattendant in custodial interrogations.

In the years that followed, the Court handed down numerous rulingspurported to clarify and refine the Miranda decision.3 The practical resultof these rulings is that there now exists a complex legal maze thatinvestigators must negotiate when attempting to interrogate custodialsubjects. Occasionally, investigators fail, either accidentally orintentionally, to negotiate the maze properly.

Accidental failures to negotiate the Miranda maze have resulted in thesuppression of evidence in subsequent criminal cases,4 but generally havenot resulted in any successful civil suits against law enforcement officersor agencies.5 However, civil suits alleging intentional failures may haveconsiderably greater potential for success in the courts.6

This article reviews the cases that, by limiting the legal consequences ofMiranda violations, may have encouraged some law enforcement officers todevelop interrogation strategies that incorporate intentional violations ofthe Miranda rule. The article also examines the potential civil liabilityfor following such strategies.

Limitations on the Effects of Miranda Violations

The Supreme Court has recognized that Miranda warnings are notconstitutionally mandated.7 Rather, the warnings are a protective measuredesigned to safeguard the Fifth Amendment right against compelledself-incrimination. Consequently, violations of the Miranda rule do notcarry with them the same force and effect as a constitutional violation.Statements obtained in violation of Miranda have a variety of lawful uses.

For example, in Michigan v. Tucker,8 the Supreme Court held that a Mirandaviolation that resulted in the identification of a witness did not precludethe government from calling that witness to testify at trial. The witnessin question was named in an alibi provided by the defendant during aninterrogation session that followed an incomplete advice of rights.9 Whencontacted by the police, the witness not only failed to corroborate thedefendant's alibi but also provided additional damaging information. Thedefendant subsequently sought to have the witness' testimony excluded attrial on the grounds that the identity of the witness was discovered as aresult of the violation of Miranda. The Supreme Court, however, concludedthat although statements taken without benefit of full Miranda warningsgenerally could not be admitted at trial, some acceptable uses of thosestatements exist.10 Identification of witnesses is one such acceptable use.

In Oregon v. Elstad,11 the Supreme Court similarly held that a secondstatement obtained from a custodial suspect following one taken inviolation of Miranda is not necessarily a fruit of the poisonous tree andmay be used at trial. In Elstad, the defendant made incriminatingstatements during an interrogation that was later determined to contraveneMiranda. The defendant repeated those statements and gave a detailedconfession during a later interrogation session conducted in fullcompliance with Miranda. The defense subsequently argued that because the"cat was let out of the bag" during the initial unlawful interrogation, thestatement provided during the later interrogation was tainted by theoriginal illegality and, therefore, inadmissible. In rejecting thisargument, the Supreme Court found that the goals of Miranda were satisfiedby the suppression of the unwarned statement and that "no further purposeis served by imputing 'taint' to subsequent statements"12 lawfullyobtained.

Finally, in Harris v. New York13 and Oregon v. Hass,14 the Supreme Courtconcluded that statements taken in violation of Miranda may be used forimpeachment purposes. In both cases, defendants had given statements thatcould not be used in the government's case in chief because of technicalviolations of Miranda. In order to preclude defendants from falsifyingtestimony with impunity, however, the Court held that the taintedstatements could be used to impeach the defendants when they testifiedinconsistently at trial.

A Strategy of Intentional Violations

These limitations on the effects of Miranda have encouraged some lawenforcement officers to conclude that they have "little to lose and perhapssomething to gain"15 by disregarding the Miranda rule. When custodialsuspects invoke their Miranda right to counsel, officers know they cannotlawfully continue to interrogate those suspects until defense attorneys arepresent.16 Recognizing that the chances of obtaining incriminatinginformation from counseled suspects are relatively remote, some lawenforcement officers may choose to ignore invocations of the right tocounsel and continue to interrogate suspects with the intention of gainingwitness information or impeachment material. At the very least, officersmay continue questioning in an effort to "let the cat out of the bag" withthe hope of gaining admissible statements at a later date.

The Potential for Civil Liability

Although interrogation strategies that ignore invocations of Miranda rightsclearly defy the mandates of the Supreme Court, until recently, courts hadnot presented any compelling legal reasons to avoid the technique. Thevariety of uses for statements taken in violation of Miranda made thetechnique advantageous in criminal prosecutions, and there was no precedentfor holding law enforcement offi-cers or departments civilly liable for theintentional violation of Miranda rights.

In the past, officers sued in federal court pursuant to Title 42 UnitedStates Code (U.S.C.) 1983, or the cause of action created in Bivens v. SixUnknown Federal Narcotics Agents,17 could easily defend claims of liabilitybased on alleged violations of Miranda. Both Section 1983 and Bivensactions require that plaintiffs prove that law enforcement officersdeprived claimants of their federal constitutional or statutory rights.Because the Supreme Court has characterized the Miranda protections asprophylactic and not prescribed by either the Constitution or federalstatute, virtually every court of appeals that has confronted the issue hasheld that no actionable civil liability claim results from a violation ofthose protections.18

The unanimous fashion with which the appellate courts have handled civilsuits against law enforcement officers alleging failures to comply withMiranda has one notable exception. In Cooper v. Dupnik,19 the United StatesCourt of Appeals for the Ninth Circuit held that intentional violations ofMiranda may result in law enforcement officers' being held personallyliable for depriving individuals of either their Fifth Amendment protectionagainst compelled self-incrimination or the constitutional guarantee of dueprocess.

Liability Under Self-Incrimination Clause

In Cooper, local law enforcement officers in the Tucson, Arizona, areaformed a task force to investigate a series of rapes, robberies, andkidnappings. Officers suspected that one person was responsible for thevast majority of the offenses under investigation and dubbed the unknownsuspect the "Prime Time Rapist." Even before a suspect was identified, thetask force formed an interrogation strategy and selected the officer whowould carry it out.

The planned interrogation strategy called for a full advice of rights priorto interrogation, but in the event of a Miranda invocation, interrogationwould continue until a confession was obtained. Although the framers of thestrategy knew any confession generated by this approach would beinadmissible in the government's case in chief, they hoped to getimpeachment material that would inhibit the defendant from taking the standand claiming his innocence or pursuing an insanity defense.

When Michael Cooper was mistakenly identified as a suspect in the case, hewas arrested, advised of his rights, and, in accordance with the preplannedstrategy, questioned at length, despite numerous invocations of the rightsto silence and counsel. When the interrogation yielded no significantresults and the mistakes leading to his identification as a suspectsurfaced, Cooper was released from custody and never prosecuted.

Cooper subsequently filed a Section 1983 action against several of the lawenforcement officers involved in his arrest and interrogation, allegingnumerous violations of his constitutional rights.20 After a hearing on themotions for summary judgment filed by the defendants, the district courtdismissed a majority of Cooper's claims. The claims that survived centeredaround the in-tentional violation of Cooper's Miranda rights.

On appeal, the defense advanced the time-tested argument that the Mirandasafeguards are not constitutionally mandated and, therefore, cannot supporta claim under Section 1983. The court of appeals initially agreed with thisargument and dismissed Cooper's remaining claims.21 However, after securinga rehearing by the entire panel of the appellate court, Cooper wassuccessful in having his Miranda claims reinstated.

The court's reinstatement of Cooper's Miranda claims was based largely onthe intentional nature of the violations and the coerciveness of theinterrogation that followed. The court found that the blatant refusal tohonor Cooper's asserted rights generated a feeling of helplessness inCooper that was exacerbated by the hours of "harsh and unrelenting"22questioning that followed. According to the court, the result of thispsychological gamesmanship was that Cooper was compelled to make statementsto the interrogators.23 Although these statements were never used againstCooper, the court found that the Fifth Amendment protection againstself-incrimination that underlies Miranda had been in-fringed by the merefact that Cooper was coerced into making involuntary statements during thecustodial interrogation.

The court in Cooper made clear that it was not creating a cause of actionfor technical violations of Miranda.24 "Where police officers continue totalk to a suspect after he asserts his rights and where they do so in abenign way, without coer-cion or tactics that compel him to speak,"25 nosuccessful Section 1983 action should result. However, the court made itequally clear that intentional violations of Miranda would be viewed as afactor in determining whether "coercion or tactics" compelled custodialsubjects to speak.

Under this analysis, an officer might conclude that only those intentionalviolations that contribute to the procuring of involuntary statements areactionable under Section 1983. However, such a reading of the court'sdecision in Cooper is misleading since the court also offered analternative basis for liability.

Liability Under Due Process Clause

The door that was left open under the Fifth Amendment self-incriminationanalysis in Cooper was thereafter closed when the court considered the dueprocess implications of intentional violations of Miranda. Although neverraised by Cooper, the court gratuitously addressed the issue of whether theintentional disregard for the Supreme Court rule in Miranda shocked theconscience of the court and, thus, constituted a violation of the dueprocess protection. In Rochin v. California,26 the Supreme Court consideredthe lawfulness of a highly intrusive, warrantless search of an individual.In condemning the action, the Court held that the search "offended thosecanons of decency and fairness which express the notions of justice ofEnglish-speaking peoples even toward those charged with the most heinousoffenses"27 and "shocked the conscience of the court."28 Since Rochin, themeasure for determining violations of the Fifth Amendment guarantee of dueprocess has been whether government action "shocks the conscience of thecourt."

Applying this standard of review to the facts in Cooper, the courtconcluded that the intentional nature of the Miranda violation contributedgreatly to its finding that the government conduct was shocking to theconscience. Particularly offensive to the court was the government's statedpurpose of obtaining a statement that would keep Cooper from testifying onhis own behalf or asserting the insanity defense. According to the court,"It is proper to anticipate defenses and to work vigorously to meet them.But when the methods chosen to gather such evidence and information aredeliberately unlawful and flout the Constitution, the legitimacy islost."29 The court's finding that the intentional violation of Mirandaviolated Cooper's right to due process may have a far greater impact on lawenforcement interrogation practices than its holding that the protectionagainst compelled self-incrimination was infringed. As previously noted,the court's finding of a self-incrimination infraction resulted from theintentional violation being combined with coercive interrogation to producea compelled statement. Under the court's due process analysis, however,Section 1983 liability for government conduct deemed shocking to theconscience could be based solely on a preplanned strategy to violateMiranda intentionally even though no coercive interrogation took place.

Conclusion

Although Cooper is the only federal court of appeals decision thus far tohold that intentional violations of Miranda give rise to a civil claimunder Section 1983, law enforcement officers should be aware that theprecedent has been set. This precedent was subsequently followed inCalifornia Attorneys for Criminal Justice v. Butts,30 when the districtcourt relied on the decision in Cooper to hold that an alleged policy todisregard invocations of Miranda rights could support a claim under Section1983.

Because the argument that intentional violations of Miranda contravene theprotections of the Constitution has met with success in these cases, it islikely that plaintiffs will raise the same argument in other courts.Although other appellate courts may refuse to adopt the rationale advancedin Cooper, law enforcement officers should weigh carefully the possibilityof civil suit and consult with a departmental legal advisor prior toimplementing any interrogation strategies that call for intentional Mirandaviolations.

Endnotes1 384 U.S. 436 (1966).2 The Fifth Amendment to the U.S. Constitution provides in pertinent partthat "no person...shall be compelled in any criminal case to be a witnessagainst himself...." 3 See, e.g., Michigan v. Mosley, 423 U.S. 96 (1975)(interpreting the invocation of the right to silence); Edwards v. Arizona,451 U.S. 477 (1981) (interpreting the invocation of the right to counsel);Minnick v. Mississippi, 111 S. Ct. 486 (1990) (further interpreting theinvocation of the right to counsel); Davis v. United States, 114 S. Ct.2350 (1994) (determining the clarity necessary for an invocation of theright to counsel). 4 Miranda, 384 U.S. at 479 (evidence obtained inviolation of Miranda is generally inadmissible).5 See Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st. Cir.1995) "Every court of appeals which has spoken to this matter in similarcircumstances has held that no Section 1983 claim lay." Id. at 17.6 See Cooper v. Dupnik, 963 F.2d 1229 (9th Cir. 1992) (en banc), andCalifornia Attorneys for Criminal Justice, et al., v. Butts, 922 F. Supp.327 (C.D. Calif. 1990). 7 Michigan v. Tucker, 417 U.S. 433 (1974). 8 Ibid.9 The interrogation in Tucker preceded the Court's decision in Miranda. Thedefendant was advised of his right to silence and counsel but was not toldof the availability of appointed counsel.10 The Court stated that although Tucker was able to block the admission ofhis own statement, it did not "believe that it requires the prosecution torefrain from all use of those statements. 417 U.S. at 452.11 105 S. Ct. 1285 (1985).12 Id. at 1298.13 401 U.S. 222 (1971).14 420 U.S. 714 (1975).15 Id. at 723.16 See Minnick v. Mississippi, 111 S. Ct. 486 (1990). 17 102 S.Ct. 2727 (1982).

18 See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14(1st Cir. 1995) and cases cited therein.19 963 F.2d 1220 (9th Cir. 1992) (en banc). 20 Cooper claimed a denial ofhis right to counsel and silence, false arrest, false imprisonment,improper training and procedures, injury to reputation and propertyinterest, invasion of privacy, illegal search and seizure, and conspiracy.21 924 F.2d 1520 (9th Cir. 1991).22 963 F.2d at 1243.23 Cooper never retreated from his claims of innocence but did make somestatements that may have been slightly damaging had the criminal case goneto trial. 24 963 F.2d at 1243-44.25 Id.26 342 U.S. 165 (1952).27 Id. at 169.28 Ibid.29 963 F.2d at 1250.30 922 F. Supp. 327 (C.D. Calif. 1996).Law enforcement officers of other than federal jurisdiction who areinterested in this article should consult their legal advisors. Some policeprocedures ruled permissible under federal constitutional law are ofquestionable legality under state law or are not permitted at all.